The High Court Judgement on Binyam Mohamed: what now?

Yesterday afternoon, I waded through the full 75 page High Court Judgement on Binyam Mohamed v. Secretary of State for Foreign and Commonwealth Affairs. It’s hard to escape the sense that the FCO is not happy with the US. 

The headline finding of the Judgement was that FCO has to hand over documents to Mohamed’s defence team which could help his defence (by backing up his claim that his ‘confession’ was the result of being held incommunicado – and tortured – for two years prior to 2004, when he was moved to Guantanamo). 

Initially, the FCO defence was that as well as being detrimental to UK national security, it would also be irrelevant to hand over the documents – since they would be given to Mohamed’s defence team anyway in due course, as part of the US Military Commission trial process. 

But not any more.  According to the Judgement, “[T]he Foreign Secretary no longer contends that the United States military prosecutors will disclose the material” – a significant implied criticism of the US Military Commissions process.

What’s more, the FCO isn’t only saying that it doesn’t think the US will release the material.  The Court also notes that the Foreign Secretary has “in effect [accepted] that he has in his possession material that is potentially exculpatory or otherwise relevant to the proceedings before the United States Military Commission” [emphasis added].  Later, when the Judgement issues stinging criticism to the US for failing to provide any information on where Mohamed was being held between 2002 and 2004, it makes clear how annoyed the FCO is too:

It is clear that the United Kingdom Government considers that such material should be made available. All its strenuous actions have been directed to that end. It is its view that the material should be made available by the United States Government which has so far declined to do so. It has therefore been compelled to resist this claim.

Looking at what human rights advocates are saying about the judgement, it’s apparent that some of them are hoping that David Miliband will take this chance to mark a clear break with past UK policy. Here, for instance, is Louise Christian – a solicitor who acted for some of the British Guantanamo families – in the Guardian yesterday:

The last time we heard the words “ethical foreign policy” was years ago in the time of the late Robin Cook but they could have reappeared in the recent article by David Miliband.

Yes, she’s referring to that article.  Full marks for political savvy.  She continues:

Instead of waiting for more shaming disclosures of the same kind as in this judgment the government could make a real break with the moral equivalence of the Blair government by setting up a public inquiry and devising a new code for the security services to ensure they never “facilitate” torture and abuse again.

Normally, anyone’s reaction to this would be: fat chance. But this time, there are several factors that make it at least not totally absurd to imagine that David Miliband might be willing to consider breaking with the FCO’s traditional linguistic and legal contortions on rendition and torture.  Here are three reasons why:

1) It’s already clear that there’s a serious can of worms here; that the High Court has a tin-opener; and that it is prepared to use it.  If the extent of UK complicity in “facilitating” (the High Court’s word) a US policy of rendition, illegal detention and torture is about to become clear anyway, then why not make a virtue out of necessity, go the whole hog and hold a Take Out the Trash Day?

2) David Miliband himself is not in the frame for any of the wrongdoing covered in this case.  All this happened before he arrived at the Foreign Office.  So politically, he has nothing to lose personally, and lots to gain.  Indeed, human rights NGOs may even be right to see him as a kindred spirit.

3) You’d expect the main worry for the UK government to be the risk of irreparable damage to the UK’s relationship with the US.  But on the political side of that relationship, that risk is as low as it’s ever going to get.  The Bush Administration is on the way out, and is a lame duck anyway.  More importantly, both candidates for the Presidency are committed opponents of torture and rendition: so the policy is on the way out too.

Admittedly, the intelligence side of the US / UK relationship is another story.  Spook communities on both sides of the Atlantic are deeply concerned about where judicial processes – here, in the US and elsewhere – are going to lead.  (Witness B in the High Court case – an MI5 officer who interrogated Mohamed in 2002 – is clearly crapping himself about prosecution or even ICC referral, for instance.  Well, good.)   One supposes that US agencies might be less than ecstatic if their UK counterparts were to grass them up, and that UK intelligence agencies might make that fact plain to Ministers in no uncertain terms.

But look at the big picture (something David Miliband is good at). 

The US’s whole approach of rendition and torture isn’t just a disgrace, though it is that (High Court: “the use of torture by a state is dishonourable, corrupting and degrading the [to] State which uses it and the legal system which accepts it”).  Nor is it just that torture provides wrong information, though it does (High Court, quoting a Judgement from 1793:  “a confession forced from the mind by the flattery of hope, or by the torture of fear comes in so questionable a shape when it is to be considered as the evidence of guilt, that no credit out to be given to is; and therefore it is rejected”).

Above all, from a purely strategic point of view, the use of torture in the ‘war on terror’ represents a stupendous own goal when assessed from its own objectives, namely preventing terrorism

Every media story about US use of torture is a recruiting sergeant for radicalisation.  We know this.  But for as long as the UK fails to condemn that properly and make (as Edward Gibbon would put it) a “manly admission of error”, we continue to send that recruiting sergeant out into the streets to sign people up.  How many young Muslim kids in Bradford or Forest Gate will be sickened to read this week that MI5 has “facilitated” torture?  How many of them will want to do something about it?

The UK – much more than the US – is on the front line of terrorism.  We do not have the luxury of being able to go along with an approach dictated by the US that we know to be actively counter-productive.  We must have learned by now that our best defence against terrorism is to run our colours unequivocally up the mast of the Rule of Law, and show that we practise what we preach about our values. (Don’t just take my word for it; take that of former Cabinet Office Security and Intelligence Co-ordinator David Omand). 

The Judiciary has just done UK counter-terrrorism strategy a big favour by underlining the continuing strength of that Rule of Law. David Miliband should seize the opportunity it’s created.

P.S. – The US, on the other hand, has been quite fantastically cavalier towards UK judicial process.  The High Court records that it wrote to the ‘Convening Authority’ for the Military Commissions special trial process (the Honorable Susan Crawford, since you ask), to request that the prosecution process against Mohamed be put on pause while the High Court consider the case in Britain – a pretty standard legal request. 

Not only did she fail to accede to this request, she didn’t bother to reply to the High Court’s letter – even after being chased.  The Court’s Judgement says “It is a matter of considerable regret that no response was received [from the Convening Authority], despite our request in the course of the hearing” – which, for judicial language, is incandescently pissed off.  Why we should continue to extradite UK citizens to face charges in the US on the basis of incomplete evidence when our own judicial process gets this kind of treatment in return is now a question of even greater topicality than before.  But that’s for another post.

P.P.S. Thanks to Daniel for helpfully pointing out that Pauline Neville-Jones – the Conservative front becnh spokesperson on national security – used to run the Joint Intelligence Committee, not MI5, and was therefore not running MI5 at the time the facts of Binyam Mohamed’s case were being played out (as this post at first mistakenly suggested).  Duh.